The Administrative Law Judge made extensive findings of fact in this case, the most important of which are as follows:

3. That the claimant had carcinoma which required a radical neck dissection and total laryngectomy in June 1972 and after a recuperative period returned to work on a part-time basis, i.e., substantial gainful activity, in October 1972 with further related surgery in June 1973.
*fn2"

4. That the residuals of claimant's 1972 surgery did not prevent a return to the part-time hairdressing and would not prevent a continuation of the hairdressing work.

5. That claimant's tolerance of vapors, fumes and other pollutants has not been established as being so low as to preclude his performing the duties of the jobs representatively identified by the Vocational Expert.

6. That considering the claimant's residual physical capacity and his vocational background, he is not only able to return to hairdressing but is able to perform the various jobs identified above by the Vocational Expert.

7. That the jobs identified by the Vocational Expert exist in various substantial numbers in the region where claimant resides as well as in other areas of the country. (Tr. 16).

With respect to the first test, the claimant has certainly established some physical impairment. The claimant will never talk in a normal voice, and it appears that he has limited use of his right arm. However, there is substantial evidence that the claimant's physical difficulties did not preclude him from undertaking substantial gainful activity, and thus, claimant did not satisfy the second requirement for disability benefits.

On the one hand, the record reveals that, subsequent to his laryngectomy, the claimant suffered from diverticulosis coli and an irritable colon syndrome, neither of which were alleged to be of sufficient seriousness as to mandate the award of disability benefits. Dr. McStavog, the claimant's own physician, opined that, following the June, 1973 surgery, Torelli's condition was excellent except for periods of depression. On the other hand, the same doctor urged that the claimant was "completely disabled" and Mr. Torelli's testimony on the extent of his physical problems would appear to support that conclusion.

However, the Administrative Law Judge, as the trier of fact, has the duty to resolve any conflict in the evidence presented at a disability hearing. Richardson v. Perales, supra, 402 U.S. at 399. In addition, although testimony of pain unaccompanied by objectively observable symptoms can support a finding of disability, nonetheless, the finder of fact is entitled to reject the claimant's testimony of his subjective pain entirely, as long as that rejection and the reasons therefore are stated in the administrative findings of fact. Baerga v. Richardson, 500 F.2d 309, 312-13 (3d Cir. 1974).

In this case, the Administrative Law Judge specifically considered the subjective symptomatology of Mr. Torelli and the statement of Dr. McStavog, evidenced by findings of fact numbers four and five. Furthermore, the Administrative Law Judge posed a hypothetical question for the vocational expert premised on the truth of Torelli's testimony. However, several factors militated against a finding that Torelli was disabled. The claimant resumed his work as a hairdresser following his initial surgery despite his assertion of sensitivity to fumes and dust. Both of these pollutants were abundantly present in that working environment in the form of hairsprays, dyes, and cut hair. After his second operation, Torelli again attempted to secure work in his former occupation despite his claim that he had limited use of his right arm and that he had almost severed a client's ear while cutting hair. Torelli applied for jobs where he would be exposed to strong fumes. Finally, the claimant smoked cigarettes.

Although none of this evidence in isolation warranted a denial of Torelli's application, when taken as a whole it provided a substantial basis for a finding that he was not entitled to disability benefits.

The claimant misapprehends the current state of the law under the Social Security Act. Torelli urges that since few, if any, firms will actually employ him he is entitled to disability benefits. However, the Third Circuit, in Gentile v. Finch, 423 F.2d 244 (3d Cir. 1970), specifically held that proof of "whether or not the claimant would be hired" was irrelevant after the 1967 amendments to the Social Security Act. The claimant is precluded from receiving disability benefits so long as a vocational expert, after consideration of the claimant's disability, age, education and training, is able to identify jobs that exist in significant numbers in the economy which Torelli could fill. I can only reaffirm the following statement of the panel in Gentile v. Finch:

Although it is very harsh to deny disability benefits to one whose impairments will cause employers to refuse to hire him for jobs he can still perform, we are bound by the explicit Congressional command and by the substantial evidence supporting the Secretary's determination.

423 F.2d at 248.

The defendant's motion for summary judgment is GRANTED.

BY THE COURT:

A. Leon Higginbotham, Jr.

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